Citation NR: 9621711
Decision Date: 08/07/96 Archive Date: 08/15/96
DOCKET NO. 94-20 764 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila,
Philippines
THE ISSUE
Whether new and material evidence has been submitted in order
to reopen a claim of entitlement to service connection for
pulmonary tuberculosis involving the right lung on a
secondary basis.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Robert P. Regan, Counsel
INTRODUCTION
The appellant served on active duty from October 1944 to
December 1945.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal of a January 1994 rating determination by
the Department of Veterans Affairs (VA) Regional Office (RO)
located in Manila, Philippines.
The RO has interpreted the lay statements and evidence as
being a claim of entitlement to service connection for
pulmonary tuberculosis as secondary to the service-connected
residuals of a contusion to the right chest. The Board
concurs with this interpretation of the issue. The record
does reflect that the appellant is also claiming an increased
evaluation for the residuals of a contusion to the right
chest. This issue has not been developed for appellate
consideration and is referred to the RO for appropriate
action.
In December 1984, the Board entered a decision which denied
entitlement to service connection for pulmonary tuberculosis
both on direct and secondary bases. This decision was based
on a de novo review of the record.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant maintains that the RO erred in not granting the
benefit sought. He states that he experiences pain in the
right upper chest region and has submitted medical evidence
showing that the pulmonary cavitation and infiltration of the
right upper lung are etiologically related to the service-
connected injury to the right chest. The appellant has
further maintained that the medication he took for the right
chest injury caused or worsened his right upper lung
disorder.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the appellant's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that new and material evidence
sufficient to reopen a claim of entitlement to service
connection for disability involving the right upper lung on a
secondary basis has been submitted, and the claim is
reopened.
FINDINGS OF FACT
1. The December 1984 the Board decision, which denied
entitlement to service connection for pulmonary tuberculosis
on a secondary basis, is the last decision based on the
merits of the appellant's claim.
2. The additional evidence submitted subsequent to the
December 1984 Board decision includes a medical opinion that
the changes in the right upper lung are causally related to
the service-connected residuals of a chest injury; this new
evidence presents a reasonable possibility that the outcome
of the case may change.
CONCLUSION OF LAW
The evidence received since the Board's decision, dated in
December 1984, which denied entitlement to service connection
for pulmonary tuberculosis, is new and material, and,
therefore, the claim is reopened. 38 U.S.C.A. §§ 5108, 7104
(West 1991); 38 C.F.R. § 3.156, 20.1105 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
In order to be entitled to service connection for a disease
or disability on a secondary basis, the evidence must reflect
that the claimed disease or disability is proximately due to
or the result of a service-connected disease or injury.
38 C.F.R. § 3.310 (1995). In this regard, service
connection is currently in effect for residuals of a
contusion to the right chest area, rated as no percent
disabling.
The last denial on the merits of a claim for service
connection for a disability involving the right lung was a
determination by the Board in December 1984. At that time it
was determined that the pathology involving the right lung
was pulmonary tuberculosis and that the pulmonary
tuberculosis was not causally related to the chest injury.
This decision is final. 38 U.S.C.A. § 7104. However, the
appellant may reopen his claim by the submission of new and
material evidence. 38 C.F.R. § 3.156(a). Pursuant to
Glynn v. Brown, 6 Vet.App. 523 (1994), the Board must
consider all evidence submitted since the last decision on
the merits in determining whether or not new and material
evidence has been submitted warranting reopening of the
appeal.
New and material evidence means evidence not previously
submitted which bears directly and substantially on the
specific matter under consideration, which is neither
cumulative nor redundant and which, by itself, or in
connection with the evidence previously assembled, is so
significant that it must considered in order to fairly decide
the merits of the claim. To justify reopening on the basis
of new and material evidence, there must be a reasonable
possibility that the additional evidence, when viewed in
context with all the evidence, both new and old, would change
the outcome. Colvin v. Derwinski, 1 Vet.App. 171 (1991).
The evidence of record at the time of the December 1984 Board
determination may be briefly summarized. The service medical
records reflect the appellant was hospitalized in July and
August 1945 for chest pain. At that time, the diagnosis was
that the chest pain was due to a contusion to the chest. In
1977 the appellant was examined at a private medical
facility. At that time he complained of an on-and-off cough
for the prior six months with white frothy sputum. He
further reported anorexia and a slight weight loss. X-rays
were interpreted as showing findings consistent with
pulmonary tuberculosis, moderate to far advanced, bilateral,
but more on the right with cavitation on the right upper
lobe. The appellant was examined by a private physician on
several occasions during July and August 1983, at which time
the diagnosis was residuals, chest injury, consistent with
pulmonary tuberculosis, moderate to far advanced, bilateral,
alveolar on the right with cavitation in the right upper
lobe. A VA examination conducted in October 1983 contains
diagnoses which includes pulmonary pathology, both upper
lobes, etiology undetermined.
The evidence received since the December 1984 Board
determination includes medical statements from Ponciano N.
Lloren, M.D., dated in December 1985 and March 1993. In
March 1993, Dr. Lloren stated that he was the appellant's
private physician and that the appellant had cavitations and
infiltrations of the right upper lung which were
etiologically related to the old post-traumatic injury to the
right chest area.
The Board is of the opinion that the March 1993 statement
from the appellant's private physician is new and material in
that it contains an opinion regarding a causal relationship
between the right lung pathology and the service-connected
contusion to the chest. This evidence raises a reasonable
possibility of a change in the prior adverse outcome. The
appellant's claim is, thus, reopened.
ORDER
New and material evidence has been presented to reopen a
claim of service connection for pulmonary tuberculosis
involving the right lung on a secondary basis, and the appeal
is granted to this extent.
REMAND
In view of the medical statements submitted on behalf of the
appellant, it is the Board's judgment that a contemporaneous
and thorough VA examination will be of assistance in
rendering a determination in this case. In accordance with
the statutory duty to assist the appellant in the development
of evidence pertinent to his claim and pursuant to
38 U.S.C.A. § 5107 (West 1991), the case is REMANDED for the
following action:
A VA examination should be conducted by a
specialist in chest and pulmonary
disorders in order to determine the
nature and severity of any disability
involving the right chest and right lung.
All testing deemed necessary should be
performed. All pertinent complaints or
symptoms having a medical cause, as well
as any pathological findings in the right
lung, should be covered by a definite
diagnosis. In conjunction with a review
of the claims folder, the examiner should
render an opinion as to the degree of
probability that any disability involving
the right lung, to include pulmonary
tuberculosis, is causally related to the
service-connected chest contusion.
Additionally, the examiner should render
an opinion as to the degree of
probability that any medications the
appellant is or was taking for the
service-connected chest contusion caused
or resulted in chronic increase in
severity of any right lung disorder
diagnosed. A complete rationale for any
opinion expressed should included in the
examination report.
Thereafter, the case should be reviewed by the RO. If the
benefit sought is not granted, the appellant and his
representative should be furnished a supplemental statement
of the case and an opportunity to respond. The case should
then be returned to the Board for further appellate
consideration.
GARY L. GICK
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
Supp. 1995), a decision of the Board of Veterans’ Appeals
granting less than the complete benefit, or benefits, sought
on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402 (1988). The date that appears on the
face of this decision constitutes the date of mailing and the
copy of this decision that you have received is your notice
of the action taken on your appeal by the Board of Veterans’
Appeals. Appellate rights do not attach to those issues
addressed in the remand portion of the Board’s decision,
because a remand is in the nature of a preliminary order and
does not constitute a decision of the Board on the merits of
your appeal. 38 C.F.R. § 20.1100(b) (1995).
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